Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Neil J. Wilkof, Annsley Merelle Ward, Darren Smyth, Nicola Searle, Eleonora Rosati, David Brophy, Alberto Bellan and Merpel, with contributions from Mark Schweizer. You're welcome to read, post comments and participate. You can email the Kats here

From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Friday, 10 April 2015

Piracy seems to continue in the troubled waters of the Mediterranean shores of Italy and Spain, at least
when it comes to the assessment of, and to sanctions for, the online infringement of copyright works. Indeed, in the past couple of
weeks in both jurisdictions the relevant authorities of each country have given
two relevant decisions which fit within the new wave brought by the
corresponding recent developments of their online enforcement frameworks.

As regards the Italian case, Agcom (the Italian Communication Authority), on which the IPKat reported herehereherehere and here, recently affirmed that the presence of a single infringed
literary work, namely Project Management –A Practical Handbook, on the
website www.dasolo.infocould not justify an order to disable the access to the entire website.

As the hosting provider’s servers
were located outside Italy, the sole measure available according to Article 8.5
of the Regulation on Online Copyright Enforcement would have been to request Italian mere conduit providers to inhibit the access from Italy to the
whole site.

Agcom applied the principle
of proportionality construed by the EU case law (let's refer to Promusicae
C-275/06 and to Telekabel C-314/12) when it dismissed the case, in that it
considered that the allegedly unlawful distribution of one single copyright work could not constitute a minimum threshold of infringement deserving the
termination of the access as provided by the regulation.

Although a balancing approach
between the fundamental rights is always welcome, meaning in the case at
stake copyright on the one hand and the freedom to conduct a business on the other, there nonetheless remains a
sense of frustration. Maybe it is inherently induced by a regulatory and
technical gap for not being possible to undergo a selective takedown of the
infringing material in cases such as the 'dasolo.it' in which the hosting servers
are located outside Italy, or maybe because it is not that clear why the
website's registrant is a Panamanian company specialised in online anonymity
services and why the 'dasolo.it' site adverts in its website heading the slogan
“Da Solo All for Free” (“Da Solo Tutto Gratis”).

At least, looking at the Agcom's
decisions along this first year after its entry into force, no distinction has
been made with regard to the type of copyrighted work, and to the consequent
right holders’ claims, in similar circumstances to those of the case at hand where
there was a sole infringement in a certain website hosted by the servers abroad.

Indeed, Agcom also reached the same
conclusions in proceedings regarding audiovisual works, as was the case
for “Il mistero di Dante”a 2014
Italian independent movie, to which the users could be directed by means of two
links at the webpage www.guardarefilm.com.
Agcom considered that the author’s rights were infringed, and that this concerned the Italian public as the 86,8% of the
website’s users were from Italy. Remarkably however, despite the double source for
infringement, the quantitative analysis of Agcom held that the protection of the audiovisual work, which still was the sole infringing material enforced by the
complainant, was superseded by the principle of proportionality.

That said, should a lesson be
inferred from Agcom’s decisions we may say that, apart from directly contacting
the website or webpage manager/s, right holders should be aware of the Agcom’s
range of parameters whereby the violation of copyrighted works can be successfully
enforced or not depending on the location of the hosting servers. If one single
work infringed would lead to the dismissal of the case, a bunch of eleven works
unlawfully exploited can amount to a massive infringement and serve for
enacting the fast track proceeding provided by Agcom’s Regulation (see the
IPKat here).

Merpel decides thatpiracy does not suit her

Totally different outcomes were achieved by the Spanish Courts of the Administrative Jurisdiction in two cases related to
the piracy of music works, ordering the Spanish internet access providers to
block the access to both The Pirate Bay’s webpages and the streaming website
Goear. Therefore, the Courts complied with the Spanish IP Act in that they
authorised the measures of disabling the access to the referred websites
and, therefore, ratified the decisions of the Second Section of the Intellectual Property
Commission, which was introduced by means of the Sinde Law to counteract online piracy in Spain.

In both suits, the Spanish
Collective Society AGEDI (Collective Society for Authors and Producers) filed a
complaint before the Second Section of the Intellectual Property Commission in
the view of the huge quantity of music files made available to the public
without the consent of the right holders. The Spanish Administrative Authority
allowed AGEDI’s requests in view of the massive infringement of the
protected music works and in compliance with the principle of proportionality
provided by Article 158ter of the Spanish IP Act.

After having recently put in place the
appropriate measures to combat online piracy Italy and Spain are now strictly following
their routesto safeguard copyright streams in their
online environments.

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